State v. Smith (In re Z.F.S.)

In the Matter of the Dependency of: Z.F.S., dob 01/06/13, A minor child.

STATE OF WASHINGTON, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent, v. MARIE SMITH, Appellant.

No. 75104-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

June 19, 2017

ORDER GRANTING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT THE RECORD, WITHDRAWING OPINION, AND SUBSTITUTING OPINION

Appellant, Marie Smith, has filed a motion for reconsideration of this court's opinion filed on April 17, 2017, and a motion to supplement the record on appeal. Respondent, Department of Social and Health Services, has filed a response to appellant's motions. The panel has determined that appellant's motion for reconsideration and appellant's motion to supplement the record should be granted. The panel has further determined that the opinion filed on April 17, 2017, should be withdrawn and a substitute opinion be filed. Now, therefore, it is hereby

ORDERED that appellant's motion for reconsideration and appellant's motion to supplement the record are granted. It is further ORDERED that the opinion filed on April 17, 2017, is withdrawn and a substitute opinion be filed.

DATED this 19^th day of June, 2017.

/s/_________

WE CONCUR:

/s/_________

/s/_________

UNPUBLISHED OPINION

BECKER, J. — Marie Smith appeals the denial of her motion to vacate an order terminating her parental rights to her son, Z.F.S. She contends the court violated CR 60(e)(2) and her right to due process by denying the motion to vacate without first holding a hearing. We affirm.

Smith is the biological mother of Z.F.S., born on January 6, 2013. The parental rights of Z.F.S.'s father were terminated in 2014 and are not at issue in this appeal.

Shortly after the child's birth, the court entered an order of dependency. The order recited Smith's history of "severe mental health issues," inpatient and outpatient mental health treatment, alcohol and marijuana dependence, and a history of chemical dependency treatment and relapse. It stated that Smith "continues to act erratically, to appear delusional, and to become highly intoxicated." Smith had recently made numerous calls to fire departments and law enforcement with bizarre behaviors and reports.

The court ordered Smith to participate in a psychological evaluation, which was later administered by psychologist Steve Tutty. Dr. Tutty diagnosed Smith with bipolar disorder, poor executive functioning, and suspected alcohol abuse. A chemical dependency assessment administered by Sound Mental Health concluded that Smith showed signs of alcohol and marijuana dependence.

In September 2014, following largely unsuccessful attempts to treat Smith's mental health and substance abuse issues, the Department of Social and Health Services petitioned to terminate her parental rights. The petition stated in part that Smith demonstrated an unwillingness to participate in or successfully complete services offered and that she "has a severe and debilitating mental illness for which she refuses to obtain treatment or medication." The petition also stated that Smith abuses alcohol and had not completed a chemical dependency assessment or urinalysis testing.

During trial on the petition, Smith's counsel told the Department that Smith was interested in an open adoption. The parties subsequently reached anagreement under which Smith would voluntarily relinquish her parental rights and the child would be placed in an open adoption. Before accepting the agreement, the court asked Smith and her counsel the following questions:

[THE COURT:] . . . I have the relinquishment of custody, consent to termination, adoption, and waiver of rights and received notice of proceedings which has been signed by Ms. Smith and signed by [counsel] as a witness. Have you been through that entire document with Ms. Smith?

[COUNSEL]: Yes, I have, your Honor.

THE COURT: Okay. And do you believe she fully understands that document?

[COUNSEL]: Yes.

THE COURT: Are you satisfied that it's a knowing, intelligent, and voluntary waiver of the rights that she's giving up?

[COUNSEL]: Yes.

THE COURT: Okay. Ms. Smith, do you have any further questions for [your counsel] or for me?

MS. SMITH: No, your Honor.

This colloquy occurred on February 19, 2015. The court informed Smith she had 48 hours to revoke her relinquishment for any reason.

Smith did not change her mind, and on February 23, 2015, the court entered, and Smith signed, a "Relinquishment of Custody, Consent to Termination/Adoption, and Waiver of Right to Receive Notice of Proceedings." The document stated:

4. I hereby consent to termination of my parental rights and request the Court to enter an order permanently terminating all of my parental rights to the child. I further consent to the child's adoption and also authorize the Department of Social and Health Services to consent, on my behalf, to the child's adoption.

5. I understand that the legal effect of this consent will be to divest me of all legal rights and obligations with respect to the child, except for past due support obligations with respect to the child. I also understand that the child will be freed from all legal obligations of obedience and maintenance with respect to me, and shall be, toall legal intents and purposes, and for all legal incidents, the child, legal heir and lawful issue of the ultimate adoptive parents, entitled to all rights and privileges, including the right of inheritance and the right to take under testamentary disposition, and subject to all obligations of a child of such adoptive parents as if born to such adoptive parents. . . .

6. I understand that my decision to relinquish the child is an extremely important one, that the legal effect of this relinquishment will be to take from me all legal rights and obligations with respect to the child, and that an order permanently terminating all of my parental rights to the child will be entered. . . .

. . . .

10. I understand that after this consent is approved by the court, it is not revocable except for fraud or duress practiced by the person, department or agency requesting the consent or for lack of mental competency at the time the consent was given by me. Under no circumstances can I revoke this consent later than one year after it is approved by the Court.

. . . .

13. I have read or have had read to me the foregoing and I hereby understand the same. The foregoing consent has been given freely, voluntarily, and with full knowledge of the consequences, and the consent is not the result of fraud or duress, nor am I acting under the influence of anyone.

Smith, the adoptive parents, and the child, through a Court Appointed Special Advocate, entered a written stipulation, agreement, and findings regarding the adoption. The agreement recited that it was "entered into by all parties willingly, without force, duress, or coercion." The agreement included a finding by the court to the same effect, as well as findings that the parties had access to counsel before signing the agreement and that the agreement was in the child's best interests. Bold print located immediately above the parties' signatures stated:

The . . . parties declare under the penalty of perjury . . . that they have read the foregoing Stipulation, Agreement, Findings of Fact, Conclusions of Law And Order Regarding CommunicationAnd Contact Between Birth Parent, Child Adoptee And Adoptive Parents, understand and agree with the contents thereof, and consent to its entry by this court.

The court entered findings and conclusions terminating Smith's parental rights. The court found that Smith "understood the consequences of . . . her acts and was not acting under fraud, duress, or mistake of fact, and that the written consent was validly executed." The court concluded that Smith "executed a valid relinquishment" and that termination was in the best interests of the child.

One year later, Smith filed a "Motion for Order to Show Cause and Respondent's Motion to Vacate Order Terminating The Parent-Child Relationship as to the Mother." The motion sought relief from the termination order under the following authorities:

CR 60(b)(1) (irregularity in obtaining an order or judgment); CR 60(b)(2) (erroneous proceedings against a person of unsound mind not appearing on the record); CR 60(b)(11) (other reasons justifying relief from judgment); RCW 26.33.070 (appointment of a guardian ad litem for a parent in adoption proceedings); RCW 26.33.160(g) (lack of mental competence of parent signing revocation).

Smith's proposed "Order to Show Cause" ordered an evidentiary hearing as to why the Order Terminating the Parent-Child Relationship as to the Mother should not be vacated.

In a supporting memorandum, Smith argued that, given her mental health issues, "the Court should have appointed a guardian ad litem to assist her in signing the relinquishment or sought the assistance of Dr. Tutty in determining if Ms. Smith could rationally sign such a document." Smith alleged in a supporting declaration that she was drinking, not consistently participating in mental healthservices, and "very 'strung out'" when she relinquished her parental rights. Smith filed a copy of Dr. Tutty's 2014 evaluation, which discussed her poor executive functioning, bipolar disorder, and other mental health issues.

On March 21, 2016, the court denied Smith's motion to vacate, stating in part:

Smith raises the following legal authorities:

RCW 26.33.070(1). This statute applies to an incompetent party. But based on the proceedings before the Court, the Court found, on February 23, 2015, that Smith executed a valid consent to termination of the parent-child relationship and in doing so, "she understood the consequences of . . . her acts and was not acting under fraud, duress, or mistake of fact. . . ." These proceedings included the undersigned judge's in-person observation of three days of trial and Smith's lengthy live testimony. This allowed the judge to carefully observe Smith's demeanor,

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